Commonwealth v. BETHEA

¶1concurring.

¶2“I concur in the judgment of reversal solely on the ground that these contempt convictions must be regarded as infected by the fact that the unprecedented long sentence of 22 years which they carried was imposed by a judge who himself had been the victim of petitioner’s shockingly abusive conduct. That circumstance seems to me to deprive the contempt proceeding of the appearance of evenhanded justice which is at the core of due process. For this reason I think the contempt convictions must be set aside, leaving the State free to try the contempt specifications before an*177other judge or to proceed otherwise against this petitioner.

¶3a

¶4“Mr. Justice Black concurs in the judgment and with all the opinion except that part which indicates that the judge without a jury could have convicted May-berry of contempt instantaneously with the outburst .”

¶5It cannot escape anyone’s notice that in Mayberry, 400 U.S., supra, no mention was made, and in Illinois v. Allen no mention was made, except by Justice Black, of the right of a defendant who commits one or more outrageous attacks on a Judge in the Courtroom to a jury trial. On the contrary, the Supreme Court granted a trial Judge or trial Court the right and power to instantly and summarily find a defendant guilty of contempt of Court and impose a prison sentence on the contemptuous defendant.

¶6It is clearly obvious that the preservation and protection of our Courts and all proceedings before these Citadels of Justice, and particularly their right and power to administer Justice quickly and with order, dignity and decorum, free from disruption, disorderly or contemptuous conduct, is of greater importance than the Confrontation or Jury Trial provisions which protect the rights of a person on trial for a criminal offense.

¶7I hope this means that the Court has abandoned or changed—and, if not, I respectfully and strongly urge it to do so—its two prior decisions which grant a jury ■tidal to a defendant who is sentenced for more than six months for degrading or vilifying a Judge in the Courtroom. This grant of a jury trial in such situations degrades and makes a mockery of our Courts and our Judicial system and is very unwise. It is even more unwise for the following reason, which has not been considered, or at least has never been mentioned by any Supreme Court, namely, if there is a jury trial, the *178defendant can call the trial Judge as a witness and cross-examine him to his heart’s content and thus subject him to ridicule and contempt. What a misfortune for our Judges and their esteem in the eyes and minds of the Public! This is totally unnecessary and unwise, because a trial Judge’s Order and sentence for contempt of Court is subject to review by an Appellate Court for an abuse of discretion, or an error of law, or a violation of the Constitution.

¶8In the light of these decisions, and particularly in the face of all the factors and the reasons hereinabove set forth, I do not see how it is possible for any Court —and I say this with due deference—to require a jury trial for a person who has committed a direct criminal contempt of Court in the presence of the Court and has been sentenced to a year for each contempt, when they have wisely permitted, whenever appropriate, a Court to have a disruptive defendant bound and gagged and removed from the Courtroom in direct conflict with the Sixth Amendment to the Constitution. If that is both wise and necessary—and it certainly is!—it is equally wise and necessary to permit a Judge before whom a direct criminal contempt has occurred to impose a reasonable sentence upon the disorderly or disruptive or contemptuous person who has made a mockery of our citadels of Justice and our Judicial System. The contempt sentence will, I repeat, always be subject to review for an abuse of discretion or an error of law or a violation of the Constitution.

¶9When two provisions of the Constitution are conflicting or overlapping, or even when a Constitutional provision appears to be mandatory, Courts must decide from a totality of the circumstances (1) which provision of the Constitution shall prevail in each particular case, and (2) whether the challenged Constitutional provision is absolute and allows no exception, and (3) *179exactly how each provision shall be applied, and (4) when and why each should be retroactive.

¶10In my opinion, the sentences imposed upon William Boyer and Bethea for direct criminal contempt of Court were proper and appropriate and did not violate any law or due process or any Constitutional right.

¶11Opinion by

¶12The appellants herein were adjudged guilty of Contempt of Court in the court below. In each case, a prison sentence was imposed and these appeals were entered. The three cases were consolidated for argument before this Court and will be disposed of in this one opinion.

¶13On April 10, 1969, the appellant, Benjamin Franklin Bethea, Jr., was adjudged guilty of Contempt of Court for conduct occurring on January 27, 1969, and was sentenced to imprisonment for a period of one year. On April 10, 1969, the appellant William Boyer, was adjudged guilty of Contempt of Court for conduct occurring both on January 24 and February 6, 1969,1 and was sentenced to imprisonment for a period of one year. On April 10, 1969, the appellant, Robert Victor Boyer, was adjudged guilty of Contempt of Court for conduct occurring on April 10th, and was sentenced to imprisonment for a period of three months.

¶14In each case a pretrial motion for a jury trial, was denied, and the contempt adjudications were entered following a hearing before a court en banc.

¶15*165The adjudications and sentences in the cases of Bethea and William Boyer must be reversed because the denial of a jury tidal in these instances violated constitutional due process. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444 (1968), and Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886 (1970).

¶16In Duncan, supra, the Supreme Court of the United States ruled that the Sixth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, requires that individuals accused of “serious offenses” must be afforded the right to trial by jury.2 This includes those who are accused of criminal contempt. Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477 (1968). And an offense for which a term of imprisonment is imposed which exceeds six months is a “serious offense”. Baldwin v. New York, supra.

¶17We will not now detail the conduct of Bethea and William Boyer that caused the citations for contempt to be issued against them, but it is clear that these acts constituted criminal contempt. See Knaus v. Knaus, 387 Pa. 370, 127 A. 2d 669 (1956) ; Snyder’s Case, 301 Pa. 276, 152 A. 33 (1930); and Scouten’s Appeal, 186 Pa. 270, 40 A. 481 (1898).

¶18The trial resulting in the adjudication and sentence of Robert Victor Boyer also violated constitutional due process, but for reasons other than those present in the cases of Bethea and William Boyer. In this ease the record discloses the following:

¶19Robert Victor Boyer [a brother of William] was a spectator at the contempt hearings of Bethea and William Boyer. After the sentences were imposed he arose from his seat and proceeded to walk towards the door of the court room. Near the door, he said in a voice *166loud enough to be heard by the court reporter, “You will never do it Jack.” One of the members of the court directed that Boyer be taken into custody “right away”; that he be searched and “secured”; and, that he be tried for contempt immediately. Since the accused was without counsel, Robert B. Going, Esq., who was also a spectator in the court room was appointed to represent him.

¶20Mr. Going asked the court that he “be given a little time” to study the case, but this request was denied. Court was then advised that Boyer did not wish Mr. Going to represent him and wanted an opportunity to engage and consult his own personal attorney. The court then excused • Mr. Going from participating in the case, but refused Boyer’s request for time to' engage his own attorney. The hearing then proceeded without Boyer having the assistance of counsel. At the conclusion of the hearing, Boyer was adjudged guilty of contempt and was sentenced to serve three months in prison.-

¶21Due process required that Boyer have the effective assistance of legal counsel during the proceedings. Assuming arguendo, that the court properly denied Boyer the opportunity of engaging private counsel, the counsel appointed by the court was at least entitled to a reasonable period of time to acquaint himself with the law and the facts in order to effectively represent his client.

¶22Adjudications and judgments reversed.

¶23Mr. Justice Cohen took no part in the decision of this case.

¶24Mr. Justice Jones concurs in the result.